The Spanish Criminal Code (CP) divides the crimes into three different kinds, serious offences, less serious offences, and minor offences, depending upon the punishment which each of them receives (art. 13 CP). Up to this juncture we have not notice this distinction between crimes when we have seen the different procedures according to which may be tried a crime, but now how are classified the crimes by the CP suddenly becomes relevant, since for the last type, the misdemeanours, the Spanish Criminal Procedure Act (LECrim) has a specific procedure, the procedure for the trial on misdemeanours, which is the object of the present writing.
For the sake of clearness I have separated different concepts in different bullets, first we will see what is a misdemeanour, secondly the procedure for trying it, thirdly the principle of opportunity and the participation of the Public Prosecutor, fourthly the right to the assistance of a lawyer, fifthly the subpoena and the appearance in court of the person who supposedly has committed the misdemeanour, sixthly the appeal, and lastly the appeal against the sentence of second instance. I hope that you enjoy it and stay until the end with me.
– The minor offences:
With the entry into force of the Organic Law 1/2015, the distinction between crimes and misdemeanours disappear from the CP, from then onward the crimes are classified into serious offences, less serious offences, and minor offences (art. 13.3 CP), depending upon the punishment with which each of them is punished (art. 33 CP).
The disappearance of the misdemeanours from the CP was based in a better rationalization of the public resources, the goal was to avoid that the punishment of behaviors with little importance absorbed a great quantity of time and money of the always lacking administration of justice, the reform also sought to reserve the criminal ambit, and with it, the state’s punitive power, to those behaviors more damaging to the society, or in other words, an application much more efficient of the principle of ultima ratio than that carried out up to that moment. From then on, some of the behaviors typified as misdemeanours started to be punished through a civil or administrative procedure, this supposed the complete derogation of the Book III of the CP and the adaptation of a great number of articles, in most of the cases just for erasing the mention to misdemeanours. By means of the Organic Law 1/2015 was also reformed the LECrim, its Book VI started to regulate the procedure for the trying of the minor offences, which in essence maintained the same features that the forme trial of misdemeanours, save for the novelty of the introduction of the called principle of opportunity (art. 963.1.1ª LECrim), which allows to the Examining Magistrate at the request of the prosecutor, the dismissal of a procedure when the facts are not really serious or harming.
The fundamental question which must be clarified is what is understood by an offence. A question which at least in part has been solved at the beginning of this epigraph, an offence are those which the law punish with a light punishment (art. 13.3 CP). A definition which does not seem to entail any complication if we take into account the light punishments gathered and enumerated in the article 33.3 CP. Nevertheless, it later is clouded by what is said in the article 13.4 CP: “When the punishment, for its extension, may be included at the same time between the mentioned in the first two numbers of this article, the crime will be regarded, always, as serious offence. When the punishment, for its extension, may be regarded as light and less serious, the crime will be regarded, always, as light”. We can find an example in the slanders done without publicity of the art. 209 CP and which are punished with a fine from three to seven months, which with the reform are tried according to the procedure for the trial on minor offences, whose knowledge and ruling now corresponds to the Examining Magistrate (art. 14.1 LECrim).
Therefore, when the punishment assigned to a crime has a part within the range of what can be considered as a light punishment, although the rest surpasses such boundaries and can be considered as a less serious punishment, the crime must be regarded as a offence. At this point is convenient to make a stop, in order to start paying attention to a key document for interpreting the procedure for the trial on minor offences, the Circular 1/2015, on guidelines for the exercise of the criminal action in relation the minor offences after the criminal reform through the Organic Law 1/2015 (Circular 1/2015). According to the Circular 1/2015 in the crimes which have a compounded punishment: “A crime can be regarded only as offence when all the punishments which has assigned are included or are altogether within the light section defined in the art. 33.4 CP; on the contrary, if any of them have an extension altogether within the section less serious of the art. 33.3 CP, the art. 13.2 will prevail and the crime will have to be regarded as less serious”. This demands that, when a crime has assigned more than one punishment, all of them have to respect threshold marked by the art. 13.4 CP, otherwise, the crime cannot be either catalogued among the minor offences, or tried according to the procedure envisaged for them.
The criteria followed by the Circular 1/2015 is the same followed by the CP in its article 131.2 CP when it regulates the prescription of the crimes, “when the punishment assigned by the law is compounded, for the application of the rules established in this article, the punishment which demands more time for the prescription will prevail.”
This carries us to talk about other features of the minor offences. The minor offences prescribes at the year (art. 131.1 CP), but here likewise we have to heed what is said in the Circular 1/2015: “The art. 133.1 CP determines the prescription of the punishments in accordance with their concrete duration established in firm sentence”. If the sentence, hence, imposes a punishment which is within the limits of the less serious offences (art. 33.3 CP), even when the crime had been classified and tried according to the rules for the trial on minor offences, it will prescribe in five years.
The minor offences does not compute either, for the application of the aggravating factor of recidivism of the art. 22.8 CP, though according to the Circular 1/2015: “This does not mean that the existence of one or more annotations for minor offences in the criminal records of the person against which a new criminal procedure is a juridical variable irrelevant. The record of convictions for minor offences should have to be taken into consideration, as an subjective adverse element, either when the opportunity of dismissing the cause opened for a new offence is being assessed (art. 963.1 CP and concordant), when the punishment which must be applied to the subject for the commission of another crime is being individualized, or when informing about the suspended sentence as an indicative element of the necessity of executing the punishment (art. 80.1, 2 CP)«. Thereby, the criminal records for minor offences can also negatively affect both when the Public Prosecutor´s office is assessing the possibility of exercising the principle of opportunity (art. 963.1 LECrim) and when the convicted asked for the suspended sentence, for we cannot forget that in this case it is a faculty of the Judge or Tribunal, being possible to deny the suspended sentence even when the requisites of the art. 80 CP for its concession are met. Notwithstanding, it can be thought that the Circular 1/2015 is too strict establishing this last criteria, since although it is true that the Judge or Tribunal must attend to all the circumstances which surround the commission of the crime when they are assessing the granting of the suspended sentence (art. 80.1, 2 CP), we cannot forget either that, the art. 80.2.1ª CP excludes the former convictions for minor offences when it establishes the requisites for determining if the criminal has commit a crime for the first time.
Another of the special features of the minor offences is that, the Judges may apply the punishments at their discretion, without being subjected to the rules established in the first section of the article 66 CP. Thereby, the articles 62, 63, and 68 CP which establish the imposition of the inferior punishment in one or two grades either in the flawed forms of execution, participation or incomplete grounds for acquittal are not applicable.
– The procedure:
The procedure for the trial on minor offences may be dealt under three different modalities: the established in the article 962, which is only applicable to a determined number of crimes, and supposes the communication of the notitia criminis through police´s report to the duty court, its summoning and the trying in the on-call service; the envisaged in the art. 964, which does not express a closed number of crimes and the subpoenas are judicially done, although like in the former case the trying must be carried out during the on-call service; and the expressed in the article 965, for those occasions in which is not possible the trying of the case during the on-call service.
Let us follow the order proposed by the LECrim, commencing for the procedure envisaged in the article 962. In this case, who communicates the facts with criminal appearance to the judicial authority is the police by meas of a report (art. 297 LECrim), however, the facts should be able to be classified according to any of the crimes enumerated in the article 962, simple bodily injuries, flagrant theft, threats, constraints and slanders. Besides, the trying such facts with criminal appearance must correspond to the Examining Magistrate to whom must be handed over the police´s report or to another within the same administrative area, if the facts, thus, must be tried by another Examining Magistrate from another administrative area, the procedure chosen cannot be the envisaged in the article 962. The Police also should be in charge of immediately summoning before the duty court the offended and harmed, the person who reports the crime, the person to whom the facts with criminal appearance are attributed, and the witnesses. This is an essential part, for in the case that the Police cannot summon any of them with enough relevance to impede the commencement of the oral trial during the on-call service, the trying of the offence must follow the rules established in the article 965 LECrim. Let us examine the different scenarios which can take place: the offended or harmed could not be summoned, in this scenario all will depend upon whether the crime is prosecuted ex officio, because the public prosecutor can exercise the accusation during the oral trial, for that, he must have been previously summoned (art. 969.2 LECrim); another scenario is when the person who could not be summoned was the person to whom have been attributed the facts with criminal appearance, here the oral trial cannot take place until he is duly summoned, otherwise the trial is null and void and the procedure should be returned to the moment in which the summoning should be practice, for disregarding an essential norm of the procedure which besides has cause defenselessness (art. 238.3 of the Spanish Organic Law of the Judicial Branch); and lastly, it is possible that who could not be summoned was a witness, the lack of its summoning will only be relevant if the duty court regards it as essential, for if once it has received the police´s report and the summonings which have been practiced, it misses an indispensable means of proof, the oral trial cannot commence (art. 963.1.1º LECrim). Along the summonings for appearing in court, the offended and the harmed, must be informed of their rights in the terms of the articles 109, 110 and 967, in other words, of their right to be a party in the cause and to renounce to the restitution of the thing, the reparation of the damage and the compensation for the harm caused by the criminal facts, and of being assisted by a lawyer. According to the article 109 bis and 110, the victims and harmed by a crime can by a party of the cause until the procedure of qualification of the crime, although they can wait until the beginning of the oral trial limiting their allegations to the writing of accusation of the Public Prosecutor or the rest of accusations. In a procedure, as the procedure for the trial on minor offences, which has neither an stage of investigation of the crime, nor intermediary stage, it is understood that the victims and harmed by the crime may became a party of the procedure until the commencement of the ora trial, where is for the first time formulated accusation.
The person to whom is attributed the offence, along the summoning, he must be informed in writing of the facts in which consists the report and of his right of being assisted by a lawyer (art. 962.2 LECrim). This requisite also is indispensable, for otherwise the person to whom have been attributed the facts with criminal appearance will see infringed his right to be informed of the accusation formulated against him (art. 24.2 LECrim), it would suppose the nullity of the oral trial with the return of the procedure to the moment in which he was summoned for having disregarded an essential norm of the procedure which has caused defenselessness (art. 238.3º of the Spanish Organic Law of the Judicial Branch), for he have not been able to prepare his defense before the commencement of the oral trial. With regard the assistance of a lawyer, it will be only mandatory when the offence has assigned a fine whose maximum limit is of at least six months (art. 967.1 LECrim).
Having been practiced the necessary investigations and summonings, the Police will hand over the report where they are gathered to the duty court (art. 962.3 LECrim). In this moment the Examining Magistrate who receives it must check that he has competence for the knowledge and ruling of the facts, and besides, that the facts related in the report can be typified as an offence according to the CP, otherwise, either the Examining Magistrate cannot initiate the procedure according to the rules of the article 962 for being lack of competence and the facts will be tried according to the envisaged in the article 965, or the Examining Magistrate cannot initiate the procedure for not being regarded as an offence the facts related in the report (art. 269 LECrim). Although it is also possible that, the facts related in the report cannot be classified as an offence, in such cases preliminary proceedings must be initiated according to the rules of the Abbreviated Procedure (art. 774 LECrim), or even that, neither the facts related in the report can be regarded as an offence, nor the Examining Magistrate to whom has been handed over the report has competence to the knowledge and ruling them, in these cases, the Examining Magistrate must inhibit himself in favour of the Examining Magistrate whom he deems with competence (art. 25 LECrim).
Once the Examining Magistrate has confirm his competence and that the facts contained in the report may be regarded as an offence, the Examining Magistrate must agreed some of the following resolutions: he can agreed the dismissal of the procedure when the Public Prosecutor has asked for it because both the offence reported is not enough serious and there exist no relevant public interest in the punishment of the fact; or he can agreed the immediate beginning of the oral trial in the case the persons summoned has appeared into court, or even when some of them have not appear but they are not relevant to the outcome of the procedure, in order to take this decisión the Examining Magistrate has to take into account too, if all the indispensable proofs can be practiced during the oral trial (art. 963.1 LECrim).
Let us now move to the second of the modalities according to which the procedure for the trial on minor offences may be dealt, the envisaged in the article 964. In essence we are before the same procedure with some particularities: there is no closed enumeration of the crimes, therefore we should understand that the procedure established in the art. 964 is valid for any offence; although the transmission of the notitia criminis is carried out chiefly through the police´s report, it is possible to communicate it by means of the report of the offended or ¿why not?, by any other person who knows the facts (art. 259, art. 262 and art. 264 LECrim), or even through a lawsuit, for the second section of the article 964 talks about the person who makes the report, and in its third section about the plaintiff; and the summonings will be practiced by the duty court.
Then, the Examining Magistrate can only agree the beginning of the oral trial, if when having taken knowledge of the report he deems possible to make the summonings to the Public Prosecutor, the plaintiff or the person who report the offence, the person who allegedly commit the offence, and the witness within the on-call service. Without forgetting that, in order that the oral trial can take place in the duty court the rest of the requisites of the article 963 should be met, the Examining Magistrate should be the competent to know the facts, and in case of not appearing in court any of the persons summoned, the Examining Magistrate should not regard his presence necessary.
In everything else, as we have said, to the procedure envisaged in the article 964 can be applied what we have already seen for the procedure envisaged in the articles 962 and 963.
Lastly, the third modality, the established in the article 965, which has the peculiarity of being of application in the cases in which the oral trial cannot take place during the on-call service. As in the previous case, once the Examining Magistrate takes notice of the notitia criminis through report or lawsuit, and after examining his competence to know the facts and that the facts can be classified as an offence according to the CP, he will initiate the procedure. From this moment, he can decide whether to dismiss the case according to the art. 963..1.1º, or to agree the beginning fo the oral trial within seven days.
To the procedure of the article 965, is also applicable what we have seen about the procedure regulated in the article 962 and 963.
– The principle of opportunity and the participation of the Public Prosecutor:
The principle of opportunity, which for the first time appears in the LECrim thanks to its reform by means of the Organic Law 1/2015, consists into allowing to the Examining Magistrate the dismissal of the cause at the request of the Public Prosecutor, when despite being the facts classified as an offence, they are not enough relevant to be tried. Something that is not allowed in other procedures, which only can be dismissed if any of the requisites established in the articles 637 or 641 LECrim are met.
Let us see it with a little more of detail. This principle is stated in the article 963.1.1º, which contains two causes which must concur for allowing to the Public Prosecutor to solicit the dismissal of the cause, when: “The offence reported is of very little seriousness taking into account the nature of the fact, its circumstances, and the personal circumstances of the author, and b) there exist no relevant public interest in the punishment of the fact. In the patrimonial offences, it will be understood that there exist no relevant public interest in its punishment when the damage has been repaired and there exist no report of the harmed”.
Both circumstances are complementary, although in reality the second seems more a consequence of the first, if a fact is of very little seriousness, logically, there must exist no relevant public interest in its punishment.
Now that we already know the motives, the next question we need to solve is in which cases the Public Prosecutor may solicit the dismissal of the cause basen on them. Can he do it always?, can he do it only in some cases and under certain circumstances?, and if that is the case, what are those cases and circumstances? The first clue to answer these questions can be found in the article 969.2 LECrim: “The Public Prosecutor will assist to the trials for minor offences always that he is summoned to them. However, the Chief Public Prosecutor will give instructions about the cases in which, in accordance with the public interest, the Public Prosecutors may not assist to the trial and emit the reports mentioned in the articles 963.1 and 964.2, when the punishment of the minor offence demands the report of the offended or harmed. In these cases, the testimony of the person who reported the crime affirming the facts reported will have the value of accusation, although he does not classify them or point out a punishment for them.”
Therefore, from these article we extract that, the Public Prosecutors may not assist to the trials for minor offences, even when they have been summoned, and they will exempt of making the report mentioned in the art. 963.1 LECrim, when the punishment of the crime demands the report of the offended, and the failure to appear and the lack of the report are on account of a previous instruction of the Chief Public Prosecutor”.
The crimes which demand the previous report of the offended are the called semipublic crimes, it is in relation to those crimes when the Chief Public Prosecutor may instruct the rest of the Public Prosecutors. That this only happens with this specific kind of crimes is based on what is established in the article 130.1.5º CP, the extinction of the criminal liability for the forgiveness of the offended, when it is given concerning minor offences punishable either at the request of the offended or when the law envisaged it. Hence, the demand of a previous report of the offended, and the possibility that the own offended may forgive the accused before sentence, make that the disposition upon the object of the procedure pertains to the offended, and the actuation of the Public Prosecutor passes to a secondary plane, this is the reason why the Chief Public Prosecutor can determine when the Public Prosecutors can be absent from the procedure.
The instructions concerning the semipublic crimes which the article 969.2 LECrim mentions, has arrived in the form of the Circular 1/2015. In its final sixth and seventh conclusions we can read:
“6ª .- The Public Prosecutors will assist to the trying of the following semipublic minor offences:
Manslaughter through negligence less serious of the art. 142.2 CP provoked for either the circulation of motor vehicles or mopeds, the rendering of public or private services of collective transport of persons, or in the ambit of work, health or professional.
Less serious negligence injuries of the article 152.2 CP in relation to the art. 149 CP, in the cases pointed out in the previous point.
Intentional injuries of the art. 147.2 CP.
Mistreatment of work of the art. 147.3 CP, when the victim is a vulnerable person as consequence of his age, an illness or handicap.
In whatever other crimes, when the own Public Prosecutor has lodged the report either on behalf of the minor or the handicapped according to the art. 105.2 LECrim.
7ª.- The Public Prosecutors will refrain from intervene in the trying of the following semipublic minor offences:
Less serious negligence injuries of the article 152.2 CP in relation with the article 150 CP.
Mistreatment of work of the art. 147.3 CP, when the victim is no vulnerable person for reason of his age, illness or handicap.
Mild threats and coercions of the art. 171.7, 1 and 172.3, 1 CP.
Minor injuries in the domestic sphere of the article 173.4 CP.
Damages due to gross negligence of the article 267 CP.”
In the case of private crimes, which are two, the slander and the calumny, the Public Prosecutor must not appear in court and present the report of the article 963.1 LECrim, since the disposition upon the object of the process pertains altogether to the offended, besides, they are crimes which always require a lawsuit (art. 804 LECrim and art. 215.1 CP), and even when the procedure has been initiated by means of a lawsuit, the Public Prosecutor could not occupy the position of the private accusation if it decided to leave the procedure. Although as always to the above there is an exception, the slander can be regarded as a public crime when it affects to a public servant, authority or agent and it is about facts concerning the exercise of their charges (art. 215.1 CP).
When the object of the procedure are public crimes, those which can be punished ex officio, the Public Prosecutor must always intervene during the trial and make the report of the article 963.1 LECrim. The Circular 1/2015 has also established guidelines for these cases:
“The Public Prosecutors must be more demanding, and therefore less given to solicit the dismissal of the case, when the crime committed affects legal goods of personal nature, as the physic and moral integrity, the dignity and the freedom.”
“The necessity of protection in more intense when is harmed the legal good protected in the norm, because the iter criminis has been culminated, specially if from the crime has derived a indemnifiable harm which has not been duly compensated in the moment of dealing the Pubic Prosecutor´s report (art. 963.1.1º LECrim).”
“The personal circumstances of the author of the crime have to be also assessed, as his age, the lacking of criminal records for facts of the akin nature, active remorse, disposition to repair the harm caused,…”
“A reasonable exercise of the faculties inherent to the principle of opportunity is not possible without the previous check of the criminal records, to the end of determining the existence of factors which advise against a report (art. 963.1.1º LECrim) asking for the dismissal”.
“If, on the contrary, the procedure is initiated by virtue of the direct report of the victim, we must assume that there is a declared will of exercising the criminal action which must be taken into account. If the victim withdraws the report afterwards, or manifests his desire that the procedure is dismissed, before the Public Prosecutor has emitted his report (art. 963.1.1º LECrim), the Public Prosecutor must follow this last expressed will.”
– The assistance of a lawyer and a legal representative:
For the three modalities of dealing with the procedure for the trial on minor offences, the assistance of a lawyer and the representation by a legal representative is mandatory when the punishment associated to the crime is a fine whose maximum limit is of at least six months (art. 967.1 LECrim).
– The summoning and the assistance to the trial of the persons to whom has been attributed the crime:
Regarding the summoning, the procedure for the trial on minor offences seems to have wanted to innovate with respect the rest of procedures. In it is expressly allowed, that during the first appearance either before the Police or the Examining Magistrate, those who must be summoned choose an email or phone number to where will be directed the summonings related to the trial.
Notwithstanding, there exist instances in the Spanish jurisprudence which regard the summoning by email or telephone as generators of defenselessness, because of not leaving a proof of its reception. Here we can see two examples:
SAP L 733/2020:
“Applying the above jurisprudence to the case which occupies us now, and considering too that the article 238.3º of the LOPJ points out that “the procedural acts will be null and void when essential norms of the procedure were not taken into account, always that due to that was produced defenselessness”, it must be concluded that the summoning practiced by means of email to the person to whom was attributed the crime, without being possible of checking its reception and without all the legal information necessary, and therefore disregarding what is established in the articles 166 of the LECrim, and the articles 152 and 162 of the LEC (Spanish Civil Procedure Act) must be considered defective and the cause of defenselessness, for the appellant had not the opportunity of appearing in court, even more when there is no proof that was him who share this email for receiving the summonings from the court, consequently proceeding to admit the appeal and to declare the nullity of proceedings, with the return of the procedure to the procedure moment previous to the oral trial for practicing again the summoning according to the legal requisites established.”
AAP B 9218/2020:
“The summoning to trial “must be practiced in legal form by the fulfilling of the procedure requisites whose end is not only that the resolution arrives to the knowledge of the party, but also that the Court has the certainty of the fulfillment of the legal requisites in order to guarantee the reception of such summoning for its addressee ( SSTC 99/1991 y 141/1991). This form of summoning utilized, “by telephone, is not, a proper means for summonings to the oral trial of the accused or convicted”( STC 105/1993, de 22 de marzo reiterada en la STC 176/1998, de 14 de septiembre,)”.”
The above can be connected with the necessity that the person to whom was attributed the crime appears in court. According to the art. 971: “The unjustified absence of the accused will not suspend the oral trial, if he was summoned with the formalities envisaged in this law, unless the judge, ex officio or at the request of the party, considers necessary his testimony”.
– The appeal:
“The appeal will be formalized and dealt according to what is established from the article 790 to article 792” (art. 976.2 LECrim)
Fore more information regarding what is stated in these articles you can visit my article on the appeal of the sentence in the Abbreviated Procedure.
– The appeal against the sentence dictated in second instance:
“Against the sentence which is dictated in second instance there is no appeal” (art. 977 LECrim).
This has been confirmed by the Second Chamber of the Spanish Supreme Court, in its agreement of 9 December, 2016, which established: “With respect the possibility of the cassation appeal against the sentences coming from the procedure of minor offences… the art. 847 b) LECrim must be interpreted in relation with the articles 792.4º and 977, which respectively establish the appeals against the sentences dictated in appeal regarding less serious crimes and minor offences (old misdemeanours). While the art. 792 establishes that against the sentence dictated in appellation corresponds the cassation appeal envisaged in the art. 847, in the art. 977 is clearly established that against the sentence of second instance there is no appeal. In consequence the cassation appeal is not extended to the sentences of appellation dictated in the procedure for minor offences”.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com